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Exhibit 1.1
$100,000,000
▇▇▇▇▇▇-FIELD HEALTH PRODUCTS, INC.
9-3/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
July 30, 1997
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇-Field Health Products, Inc., a Delaware corporation (the
"Company"), proposes, upon the terms and conditions set forth herein, to issue
and sell to you, as the initial purchaser (the "Initial Purchaser"),
$100,000,000 aggregate principal amount of its 9-3/4% Senior Subordinated Notes
due 2007 (the "Notes"). The Notes will be issued pursuant to the provisions of
an Indenture, to be dated as of August 4, 1997 (the "Indenture"), between the
Company, the Guaranteeing Subsidiaries described therein and American Stock
Transfer and Trust Company, as Trustee (the "Trustee"). The Notes are to be
guaranteed, jointly and severally, on a senior subordinated basis by the
Guaranteeing Subsidiaries in accordance with the terms of the Indenture. Such
guarantees are hereinafter referred to as the "Subsidiary Guarantees" and the
Notes and the Subsidiary Guarantees are hereinafter referred to as the "Offered
Securities".
The Company wishes to confirm as follows its agreement with the
Initial Purchaser in connection with the purchase and resale of the Offered
Securities.
1. Preliminary Offering Memorandum and Offering Memorandum. The
Offered Securities will be offered and sold to the Initial Purchaser without
registration under the Securities Act of 1933, as amended (the "Act"), in
reliance on an exemption pursuant to Section 4(2) under the Act. The Company has
prepared a preliminary offering memorandum, dated July 16, 1997 (the
"Preliminary Offering Memorandum"), and an offering memorandum, dated July 30,
1997 (the "Offering Memorandum"), setting forth information regarding the
Company and the Offered Securities. Any references herein to the Preliminary
Offering Memorandum and the Offering Memorandum shall be deemed to include all
amendments and supplements thereto and any documents filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (collectively,
the "Exchange Act") which are incorporated by reference therein. As used herein,
the term "Incorporated Documents" means the documents which at the time are
incorporated by reference in the Preliminary Offering Memorandum, the Offering
Memorandum or any amendment or supplement thereto. The Company hereby confirms
that it has authorized the use of the Preliminary Offering Memorandum and the
Offering Memorandum in connection with the offering and resale of the Offered
Securities by the Initial Purchaser.
The Company understands that the Initial Purchaser proposes to make
offers and sales (the "Exempt Resales") of the Offered Securities purchased by
the Initial Purchaser hereunder only on the terms and in the manner set forth in
the Offering Memorandum and Section 2 hereof, as soon as the Initial Purchaser
deems advisable after this Agreement has been executed and delivered to persons
whom the Initial Purchaser reasonably believes to be qualified institutional
buyers ("Qualified Institutional Buyers") as defined in Rule 144A under the Act,
as such rule may be amended from time to time ("Rule 144A"), in transactions
under Rule 144A (such persons being referred to herein as the "Eligible
Purchasers").
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It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Notes (and all securities issued in
exchange therefor or in substitution thereof) shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER SUCH LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO
IS OR WHO THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND IN EACH OF THE FOREGOING CASES SUCH OFFER, SALE OR
OTHER TRANSFER IS IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES PROVIDED THAT A
CERTIFICATE OF TRANSFER IN THE FORM PROVIDED FOR IN THE INDENTURE (A COPY
OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE THEN HOLDER OF THIS SECURITY AFTER THE RESALE RESTRICTION
TERMINATION DATE. ANY TRANSFEREE OF THIS SECURITY SHALL BE DEEMED TO HAVE
REPRESENTED EITHER (X) THAT IT IS NOT USING THE ASSETS OF AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
("ERISA") OR THE INTERNAL REVENUE CODE (THE "CODE") TO PURCHASE THIS
SECURITY OR (Y) THAT ITS PURCHASE AND CONTINUED HOLDING OF THE SECURITY
WILL BE COVERED BY A U.S. DEPARTMENT OF LABOR CLASS EXEMPTION WITH RESPECT
TO PROHIBITED TRANSACTIONS UNDER SECTION 406(a) OF ERISA.
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It is also understood and acknowledged that holders (including
subsequent transferees) of the Offered Securities will have the registration
rights set forth in the registration rights agreement (the "Registration Rights
Agreement"), to be dated the date hereof, in substantially the form of Exhibit A
hereto. The registration statement to be filed under the Act pursuant to the
Registration Rights Agreement is hereinafter referred to as the "Registration
Statement." This Agreement, the Indenture and the Registration Rights Agreement
are hereinafter referred to collectively as the "Operative Documents".
Capitalized terms used herein without definition have the respective
meanings specified therefor in the Indenture or the Offering Memorandum.
2. Agreements to Sell, Purchase and Resell. (a) The Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to the Initial Purchaser and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, the Initial Purchaser agrees to purchase
from the Company, at a purchase price of 100% of the principal amount thereof,
$100,000,000 aggregate principal amount of Notes.
(b) The Initial Purchaser has advised the Company that it proposes
to offer the Offered Securities for sale upon the terms and conditions set forth
in this Agreement and in the Offering Memorandum. The Initial Purchaser hereby
represents and warrants to, and agrees with, the Company that the Initial
Purchaser (i) is purchasing the Offered Securities pursuant to a private sale
exempt from registration under the Act, (ii) will not solicit offers for, or
offer or sell, the Offered Securities by means of any form of general
solicitation or general advertising or in any manner involving a public offering
within the meaning of Section 4(2) of the Act, and (iii) will solicit offers for
the Offered Securities only from, and will offer, sell or deliver the Offered
Securities as part of its initial offering, only to persons whom the Initial
Purchaser reasonably believes to be Qualified Institutional Buyers, or if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
the Initial Purchaser that each such account is a Qualified Institutional Buyer,
to whom notice has been given that such sale or delivery is being made in
reliance on Rule 144A and in each case, in transactions under Rule 144A. The
Initial Purchaser has advised the Company that it will offer the Offered
Securities to Eligible Purchasers at a price initially equal to 100% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance of the Offered Securities. Such price may be changed by the Initial
Purchaser at any time thereafter without notice.
The Initial Purchaser understands that the Company and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Sections
7(c)(xiii) and 7(e) hereof, counsel to the Company and counsel to the Initial
Purchaser, will rely upon the accuracy and truth of the foregoing
representations and agreements and the Initial Purchaser hereby consents to such
reliance.
3. Delivery of the Offered Securities and Payment Therefor. Delivery
to the Initial Purchaser of and payment for the Offered Securities shall be made
at the office of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at
10:00 A.M., New York City time, on August 4, 1997 (the "Closing Date"). The
place of closing for the Offered Securities and the Closing Date may be varied
by agreement between the Initial Purchaser and the Company.
The Offered Securities will be delivered to the Initial Purchaser
against payment of the purchase price therefor by wire transfer of federal or
other same day funds to an account or accounts designated by the Company. The
Notes will be evidenced by one or more global securities in definitive form (the
"Global Note") and will be registered in the name of Cede & Co. as nominee of
The Depository Trust Company ("DTC"). The Notes to be delivered to the Initial
Purchaser shall be made available to the Initial Purchaser in New York City for
inspection not later than 9:30 a.m., New York City time, on the business day
next preceding the Closing Date.
4. Agreements of the Company. The Company agrees with the Initial
Purchaser as follows:
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(a) The Company will advise the Initial Purchaser promptly and, if
requested by them, will confirm such advice in writing, within the period of
time referred to in paragraph (e) below, of any change in the Company's
financial condition, business, net worth or results of operations, or of the
happening of any event, which makes any statement made in the Offering
Memorandum (as then amended or supplemented) untrue in any material respect or
which requires the making of any additions to or changes in the Offering
Memorandum (as then amended or supplemented) in order to make the statements
therein not misleading in any material respect , or of the necessity to amend or
supplement the Offering Memorandum (as then amended or supplemented) to comply
with any law.
(b) The Company will furnish to the Initial Purchaser, without
charge, as of the date of the Offering Memorandum, such number of copies of the
Offering Memorandum as may then be amended or supplemented as it may reasonably
request.
(c) The Company will not make any amendment or supplement to the
Preliminary Offering Memorandum or to the Offering Memorandum of which the
Initial Purchaser shall not previously have been advised or to which it shall
reasonably object after being so advised or at any time prior to completion of
the distribution of the Offered Securities, file any document which upon filing
becomes an Incorporated Document, without delivering a copy of such document to
the Initial Purchaser, prior to or concurrently with such filing.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to the Initial Purchaser, without charge,
in such quantities as the Initial Purchaser shall have requested or may
hereafter reasonably request, copies of the Preliminary Offering Memorandum. The
Company consents to the use, in accordance with the securities or Blue Sky laws
of the jurisdictions in which the Offered Securities are offered by the Initial
Purchaser and by dealers, prior to the date of the Offering Memorandum, of each
Preliminary Offering Memorandum so furnished by the Company. The Company
consents to the use of the Offering Memorandum (and of any amendment or
supplement thereto) in accordance with the securities or Blue Sky laws of the
jurisdictions in which the Offered Securities are offered by the Initial
Purchaser and by all dealers to whom Offered Securities may be sold, in
connection with the offering and sale of the Offered Securities.
(e) If, at any time prior to completion of the distribution of the
Offered Securities by the Initial Purchaser to Eligible Purchasers, any event
shall occur that in the judgment of the Company or in the reasonable opinion of
counsel for the Initial Purchaser should be set forth in the Offering Memorandum
(as then amended or supplemented) in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading in any
material respect, or if it is necessary to supplement or amend the Offering
Memorandum, or to file under the Exchange Act any document which upon filing
becomes an Incorporated Document, to comply with any law, the Company will
forthwith prepare an appropriate supplement or amendment thereto or such
document, and will expeditiously furnish to the Initial Purchaser and dealers a
reasonable number of copies thereof. In the event that the Company and the
Initial Purchaser agree that the Offering Memorandum should be amended or
supplemented, or that a document should be filed under the Exchange Act which
upon filing becomes an Incorporated Document, the Company, if requested by the
Initial Purchaser, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement or such
document.
(f) The Company will cooperate with the Initial Purchaser and with
their counsel in connection with the qualification of the Offered Securities for
offering and sale by the Initial Purchaser and by dealers under the securities
or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such qualification; provided that in no event
shall the Company or any of the Guaranteeing Subsidiaries be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would either subject it to service of process in suits,
other than those arising out of the offering or sale of the Offered Securities,
in any jurisdiction where it is not now so subject or
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subject it to taxation in any such jurisdiction.
(g) So long as any of the Offered Securities are outstanding, the
Company will furnish to the Initial Purchaser (i) as soon as available, a copy
of each report of the Company mailed to stockholders or filed with the
Commission, and (ii) from time to time such other information concerning the
Company as the Initial Purchaser may reasonably request.
(h) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof (otherwise than by
notice given by the Initial Purchaser terminating this Agreement pursuant to
Section 10 hereof) or if this Agreement shall be terminated by the Initial
Purchaser because of any failure or refusal on the part of the Company to comply
with the terms or fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Initial Purchaser for all out-of-pocket expenses
(including fees and expenses of its counsel) reasonably incurred by it in
connection herewith, but without any further obligation on the part of the
Company for loss of profits or otherwise.
(i) The Company will apply the net proceeds from the sale of the
Offered Securities to be sold by it hereunder substantially in accordance with
the description set forth in the Offering Memorandum.
(j) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and Offering Memorandum, the Company has not taken, nor will
it take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Offered Securities to facilitate the sale or resale of the Offered
Securities. Except as permitted by the Act, the Company will not distribute any
offering material in connection with the Exempt Resales.
(k) The Company will use its best efforts to cause the Offered
Securities to be eligible for trading on The PORTAL Market.
(l) From and after the Closing Date, so long as any of the Offered
Securities are outstanding and are "Restricted Securities" within the meaning of
the Rule 144(a)(3) under the Act or, if earlier, until two years after the
Closing Date, and during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of
the Offered Securities and prospective purchasers of Offered Securities
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Act to permit compliance with Rule 144A in connection with resale of
the Offered Securities.
(m) The Company agrees not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Offered Securities in a manner
that would require the registration under the Act of the sale to the Initial
Purchaser or the Eligible Purchasers of the Offered Securities.
(n) The Company agrees to comply with all of the terms and
conditions of the Registration Rights Agreement, and all agreements set forth in
representation letters of the Company to DTC relating to the approval of the
Offered Securities by DTC for "book entry" transfer.
(o) The Company agrees that prior to any registration of the Offered
Securities pursuant to the Registration Rights Agreement, or at such earlier
time as may be so required, the Indenture shall be qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and will cause to be entered into any
necessary supplemental indentures in connection therewith.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchaser that:
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(a) The Preliminary Offering Memorandum and Offering Memorandum with
respect to the Offered Securities have been prepared by the Company for use by
the Initial Purchaser in connection with the Exempt Resales. No order or decree
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment or supplement thereto, or any order asserting that
the transactions contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum
as of their respective dates and the Offering Memorandum as of the Closing Date,
did not or will not at any time contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the Preliminary
Offering Memorandum and Offering Memorandum made in reliance upon and in
conformity with information relating to the Initial Purchaser furnished to the
Company in writing by or on behalf of the Initial Purchaser expressly for use
therein.
(c) The Incorporated Documents heretofore filed did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further Incorporated Documents will, when so filed, not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
(d) The Indenture has been duly and validly authorized by the
Company and the Guaranteeing Subsidiaries and, upon its execution, delivery and
performance by the Company and the Guaranteeing Subsidiaries and assuming due
authorization, execution, delivery and performance by the Trustee, will be a
valid and binding agreement of the Company and the Guaranteeing Subsidiaries,
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally, and conforms in all material respects to the description
thereof in the Offering Memorandum; and no qualification of the Indenture under
the 1939 Act is required in connection with the offer and sale of the Offered
Securities contemplated hereby or in connection with the Exempt Resales.
(e) The Notes and the Subsidiary Guarantees have been duly
authorized by the Company or the Guaranteeing Subsidiaries, as the case may be,
and, when executed by the Company or the Guaranteeing Subsidiaries, as the case
may be, in accordance with the Indenture and delivered to the Initial Purchaser
against payment therefor in accordance with the terms hereof, will have been
validly issued and delivered, and will constitute valid and binding obligations
of the Company or the Guaranteeing Subsidiaries, as the case may be, entitled to
the benefits of the Indenture and enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally, and the
Notes and the Subsidiary Guarantees will conform in all material respects to the
description thereof in the Offering Memorandum.
(f) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify does not have a material adverse effect on the financial
condition, business, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
(g) All the Company's active subsidiaries are listed on Schedule I
hereto and are
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referred to herein individually as a "Subsidiary" and collectively as the
"Subsidiaries." Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation, with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify or be in good standing does not have a Material
Adverse Effect. All the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are wholly owned by the Company (with the exception of
Everest & ▇▇▇▇▇▇▇▇ de Mexico S.A. de C.V.) directly or indirectly through other
wholly-owned subsidiaries, free and clear of any lien, adverse claim, security
interest, equity or other encumbrance. None of the subsidiaries (as defined in
the Exchange Act) of the Company that are not listed on Schedule I hereto has,
individually or in the aggregate, any operations, business, property (tangible
or intangible), permits, licenses, rights or liabilities (contingent or
otherwise) that are material to the Company and the Subsidiaries, taken as a
whole.
(h) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries or any of their
respective properties, is subject, that are not disclosed in the Offering
Memorandum and which could reasonably be expected to have a Material Adverse
Effect or materially adversely affect the issuance of the Offered Securities or
the consummation of the transactions contemplated by the Operative Documents.
There are no material agreements, contracts, indentures, leases or other
instruments that are required to be filed as an exhibit to any Incorporated
Document that are not so filed. Neither the Company nor any Subsidiary is
involved in any material strike, job action or labor dispute with any group of
employees, and, to the Company's knowledge, no such action or dispute is
threatened.
(i) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws or other
organizational documents, (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries, or (iii)
in default in any respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, except in the case of clause (ii)
or (iii) for such violations or defaults which, individually or in the
aggregate, could not be reasonably expected to have a Material Adverse Effect.
(j) Neither the issuance, offer, sale or delivery of the Offered
Securities, the execution, delivery or performance of this Agreement, the
Indenture or the Registration Rights Agreement by the Company or the
Guaranteeing Subsidiaries, as the case may be, nor the consummation by the
Company or the Guaranteeing Subsidiaries, as the case may be, of the
transactions contemplated hereby or thereby (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required in connection with the registration
under the Act of the Offered Securities and/or the New Offered Securities in
accordance with the Registration Rights Agreement, the qualification of the
Indenture under the 1939 Act and except for compliance with the securities or
Blue Sky laws of various jurisdictions) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, any
indenture, bond, note, lease or other material agreement or material instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, or violates or will
violate any material statute, law, regulation or filing or any material
judgment, injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will result in the
creation or imposition of any
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material lien, charge or encumbrance upon any property or assets of the Company
or any of the Subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to which
any of the property or assets of any of them is subject.
(k) The accountants, Ernst & Young LLP, who have certified or shall
certify the financial statements included as part of the Offering Memorandum (or
any amendment or supplement thereto), are independent certified public
accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its
interpretation and rulings.
(l) The financial statements, together with the related schedules
and notes forming part of the Offering Memorandum (and any amendment or
supplement thereto), comply as to form with the requirements of the Exchange Act
and present fairly in all material respects the consolidated financial position,
results of operations and changes in stockholders' equity and cash flows of the
Company and the Subsidiaries on the basis stated in the Offering Memorandum at
the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Offering Memorandum (and any
amendment or supplement thereto) is accurately presented and is prepared on a
basis consistent with such financial statements and the books and records of the
Company. The pro forma financial statements and other pro forma financial
information included or incorporated by reference in the Offering Memorandum
have been prepared in accordance with the Commission's rules and regulations
with respect to pro forma financial information (including Article 11 of
Regulation S-X) and have been properly compiled on the basis described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are reasonably appropriate to give effect to the
transactions or circumstances referred to therein.
(m) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
Registration Rights Agreement; the execution and delivery of, and the
performance by the Company of its obligations under, this Agreement and the
Registration Rights Agreement have been duly and validly authorized by the
Company, and this Agreement and the Registration Rights Agreement have been duly
executed and delivered by the Company and constitute the valid and legally
binding agreements of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to the applicability of general
principles of equity, and except as rights to indemnity and contribution
hereunder and thereunder may be limited by Federal or state securities laws or
principles of public policy.
(n) The Guaranteeing Subsidiaries have all requisite corporate power
and authority to execute, deliver and perform their obligations under the
Registration Rights Agreement; the execution and delivery of, and the
performance by the Guaranteeing Subsidiaries of their obligations under the
Registration Rights Agreement has been duly and validly authorized by the
Guaranteeing Subsidiaries and the Registration Rights Agreement has been duly
executed and delivered by the Guaranteeing Subsidiaries and constitutes the
valid and legally binding agreement of the Guaranteeing Subsidiaries,
enforceable against the Guaranteeing Subsidiaries in accordance with its terms,
except as the enforcement hereof and thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
generally and subject to the applicability of general principles of equity, and
except as rights to indemnity and contribution hereunder and thereunder may be
limited by Federal or state securities laws or principles of public policy.
(o) Except as disclosed in the Offering Memorandum (or any amendment
or supplement thereto), subsequent to the date as of which such information is
given in the Offering Memorandum (or any amendment or supplement thereto),
neither the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction that is
material to the Company and the Subsidiaries taken as a whole, and there has not
been any
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material change in the capital stock, or material increase in the consolidated
short-term or long-term debt, of the Company or any of the Subsidiaries, or any
material adverse change, or any development involving or which could reasonably
be expected to involve a prospective material adverse change, in the financial
condition, business, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole.
(p) Each of the Company and the Subsidiaries has valid title to all
property (real and personal) described in the Offering Memorandum as being owned
by it, free and clear of all material liens, claims, security interests or other
encumbrances except such as are described in the Offering Memorandum or in an
Incorporated Document or exhibit thereto, and all the property described in the
Offering Memorandum as being held under lease by each of the Company and the
Subsidiaries is held by it under valid, subsisting and enforceable leases.
(q) Except as permitted by the Act, the Company has not distributed
and, prior to the later to occur of the Closing Date and completion of the
distribution of the Offered Securities, will not distribute any offering
material in connection with the offering and sale of the Offered Securities
other than the Preliminary Offering Memorandum and Offering Memorandum.
(r) Each of the Company and the Subsidiaries has such permits,
licenses, franchises, clearances, certificates and other approvals or
authorizations of governmental or regulatory authorities ("Permits") including,
without limitation, the Food and Drug Administration (the "FDA") of the U.S.
Department of Health and Human Services and/or any committee thereof, as are
necessary under applicable law to own their respective properties and to conduct
their respective business in the manner described in the Offering Memorandum
(including, without limitation, such Permits as are required under such federal,
state and other health care laws), except for such failures to have Permits
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; the Company and each of the Subsidiaries have
fulfilled and performed all their respective material obligations with respect
to the Permits, and no event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be set forth in the Offering Memorandum;
and, except as described in the Offering Memorandum, none of the Permits
contains any restriction that is materially burdensome to the Company or any of
the Subsidiaries.
(s) The business practices of the Company and each of its
Subsidiaries do not violate in any material respect any applicable provisions of
federal or state law governing Medicare or any state Medicaid program, including
without limitation, Sections 1320a-7a and 1320a-7b of Title 42 of the United
States Code, and no individual with an ownership or control interest, as defined
in 42 U.S.C. Section 1320a-3(a)(3), in the Company or any of its Subsidiaries,
or who is an officer, director, or managing employee, as defined in 42 U.S.C.
Section 1320a-5(b), of the Company or any of its Subsidiaries is a person
described in 42 U.S.C. Section 1320a-7(b)(8)(B), and the Company's and each of
its Subsidiaries' business practices do not violate in any material respect any
applicable provisions of federal or state law regarding physician ownership of,
or financial relationship with, or referral to entities providing health care
related goods or services, or laws requiring disclosure of financial interests
held by physicians in entities to which they may refer patients for the
provision of health care related goods or services.
(t) The property, assets and operations of the Company and the
Subsidiaries comply in all respects with all applicable federal, state and local
laws, rules, orders, decrees, judgments, injunctions, licenses, permits or
regulations relating to environmental matters (the "Environmental Laws"), except
for such failures to comply which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. To the Company's
knowledge, except as disclosed in the Incorporated Documents, none of the
Company's nor any of the Subsidiaries' property, assets or operations is the
subject of any federal, state or local investigation evaluating whether any
remedial action is needed to respond to a release of any substance regulated by
or form the basis of liability under any Environmental Laws (a "Hazardous
Material") into the environment or is in contravention of any federal, state,
local or foreign law, order or regulation. Neither the Company nor any of the
Subsidiaries
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has received any notice or claim, nor are there any pending or, to the Company's
knowledge, threatened or reasonably anticipated lawsuits or other proceedings
against it with respect to material violations of an Environmental Law or in
connection with the release of any Hazardous Material into the environment.
Neither the Company nor any of the Subsidiaries has any material contingent
liability in connection with any release of Hazardous Material into the
environment.
(u) Each of the Company and the Subsidiaries is insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are customary in the business in which it is engaged. All policies of
insurance insuring the Company and each of the Subsidiaries or their respective
business, assets, employees, officers and directors are in full force and
effect, and the Company and each of the Subsidiaries is in compliance with the
terms of such policies in all material respects. There are no claims by the
Company or any of the Subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause.
(v) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) Neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any Subsidiary (in
his or her capacity as such) has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law, rule or
regulation, except for such violations which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(x) Each of the Company and the Subsidiaries has filed all federal,
state, local and foreign tax returns and tax forms required to be filed, such
returns and forms are complete and correct in all material respects, and all
taxes shown by such returns or otherwise assessed that are due or payable have
been paid, except such taxes as are being contested in good faith and as to
which adequate reserves have been provided. All payroll withholdings required to
be made by the Company or any of the Subsidiaries with respect to employees have
been made. The charges, accruals and reserves on the books of the Company and
the Subsidiaries in respect of any tax liability for any year not finally
determined are adequate to meet any assessments or reassessments for additional
taxes. There have been no tax deficiencies asserted and, to the knowledge of the
Company, no tax deficiency might be reasonably asserted or threatened against
the Company or any of the Subsidiaries that could, individually or in the
aggregate, have a Material Adverse Effect.
(y) Each of the Company and the Subsidiaries owns or has obtained
valid and enforceable licenses for the patents, patent applications, inventions,
technology, trademarks, trademark registrations, service marks, service ▇▇▇▇
registrations, trade names, copyrights, trade secrets and rights described in
the Offering Memorandum as being owned or used by or licensed to it or necessary
for the conduct of its business (collectively, the "intellectual property").
Except as set forth in the Offering Memorandum (i) there are no rights of third
parties to any such intellectual property which could reasonably be expected to
have a Material Adverse Effect; (ii) to the Company's knowledge there is no
infringement by third parties of any such intellectual property; (iii) there is
no pending or, to the Company's knowledge, threatened action, suit, proceeding
or claim by others challenging the Company's or any Subsidiaries' rights in or
to any such intellectual property which could reasonably be expected to have a
Material Adverse Effect, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (iv) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such intellectual property which could
reasonably be expected to have a Material Adverse Effect, and the Company is
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unaware of any facts which would form a reasonable basis for any such claim; (v)
there is no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others that the Company or any of the Subsidiaries
infringes or otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others which could reasonably be expected to have
a Material Adverse Effect, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (vi) to the Company's knowledge
there is no patent or patent application which contains claims that dominate or
may dominate any intellectual property described in the Offering Memorandum as
being owned by or licensed to the Company or any of the Subsidiaries or that is
necessary for the conduct of its business or that interferes with the issued or
pending claims of any such intellectual property; and (vii) there is no prior
art of which the Company is aware that may render any material patent held by
the Company or any of the subsidiaries invalid or any patent application held by
the Company or any of the subsidiaries unpatentable which has not been disclosed
to the U.S. Patent and Trademark Office.
(z) Neither the Company nor any of the Guaranteeing Subsidiaries is,
and, upon sale of the Offered Securities to be issued and sold thereby in
accordance herewith and the application of the net proceeds to the Company of
such sale as described in the Offering Memorandum under the caption "Use of
Proceeds," will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(aa) When the Offered Securities are issued and delivered pursuant
to this Agreement, such Offered Securities will not be of the same class (within
the meaning of Rule 144A(d)(3) under the Act) as any security of the Company
that is listed on a national securities exchange registered under Section 6 of
the Exchange Act or that is quoted in a United States automated interdealer
quotation system.
(bb) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D ("Regulation D") under the Act) of the Company has
directly, or through any agent (provided that no representation is made as to
the Initial Purchaser or any person acting on its behalf), (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Act) which is or will be integrated with the
offering and sale of the Offered Securities in a manner that would require the
registration of the Offered Securities under the Act or (ii) engaged in any form
of general solicitation or general advertising (within the meaning of Regulation
D) in connection with the offering of the Offered Securities.
(cc) The Company is not required to deliver the information
specified in Rule 144A(d)(4) in connection with the offering and resale of the
Offered Securities by the Initial Purchaser.
(dd) Assuming (i) that the representations and warranties in Section
2 hereof are true, (ii) the Initial Purchaser complies with the covenants set
forth in Section 2 hereof and (iii) that each person to whom the Initial
Purchaser offers, sells or delivers the Offered Securities is a Qualified
Institutional Buyer, the purchase and sale of the Offered Securities pursuant
hereto (including the Initial Purchaser's proposed offering of the Offered
Securities on the terms and in the manner set forth in the Offering Memorandum
and Section 2 hereof) is exempt from the registration requirements of the Act.
(ee) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Offered Securities to the Initial
Purchaser or by the Initial Purchaser to Eligible Purchasers will not involve
any prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code. The representation made by the Company in the preceding
sentence is made in reliance upon and subject to the accuracy of, and compliance
with, the representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Memorandum under the section entitled
"Notice to Investors."
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser and each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses,
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12
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum or Offering Memorandum or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to the Initial Purchaser furnished in writing to the Company by or on
behalf of the Initial Purchaser expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to the Preliminary Offering Memorandum shall not inure to the benefit of
the Initial Purchaser (or to the benefit of any person controlling the Initial
Purchaser) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Offered Securities by the Initial Purchaser to any
person if the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in the Preliminary Offering
Memorandum was corrected in the Offering Memorandum and the Initial Purchaser
sold Offered Securities to that person without sending or giving at or prior to
the written confirmation of such sale, a copy of the Offering Memorandum (as
then amended or supplemented) if the Company has previously furnished sufficient
copies thereof to the Initial Purchaser. The foregoing indemnity agreement shall
be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Initial Purchaser or any person controlling the Initial Purchaser in respect of
which indemnity may be sought against the Company, the Initial Purchaser or such
controlling person shall promptly notify the Company, and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. The Initial Purchaser or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of the Initial Purchaser or such
controlling person unless (i) the Company has agreed in writing to pay such fees
and expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both the Initial Purchaser or the
controlling person and the Company and the Initial Purchaser or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding on behalf of the
Initial Purchaser or such controlling person). It is understood, however, that
the Company shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
the Initial Purchaser and controlling persons not having actual or potential
differing interests with the Initial Purchaser or among themselves, which firm
shall be designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and that all such fees and
expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless the
Initial Purchaser, to the extent provided in paragraph (a), and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors and officers and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to the Initial
Purchaser set forth in paragraph (a) hereof, but only with respect to
information relating to the Initial Purchaser furnished in writing to the
Company by or on behalf of the Initial Purchaser expressly for use in the
Preliminary Offering Memorandum or Offering Memorandum or any amendment
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or supplement thereto. If any action, suit or proceeding shall be brought
against the Company, any of its directors or officers, or any such controlling
person based on the Preliminary Offering Memorandum or Offering Memorandum, or
any amendment or supplement thereto, and in respect of which indemnity may be
sought against the Initial Purchaser pursuant to this paragraph (c), the Initial
Purchaser shall have the rights and duties given to the Company by paragraph (b)
above (except that if the Company shall have assumed the defense thereof the
Initial Purchaser shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the Initial Purchaser's expense), and the
Company, its directors and officers, and any such controlling person shall have
the rights and duties given to the Initial Purchaser by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Initial Purchaser may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchaser on the other hand from the
offering of the Offered Securities, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Initial
Purchaser on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Initial Purchaser on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Initial Purchaser, in each case as set forth in
the table on the cover page of the Offering Memorandum. The relative fault of
the Company on the one hand and the Initial Purchaser on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or by the Initial Purchaser on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 6 were determined by
a pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 6, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price of the Offered Securities purchased and resold by it as
contemplated hereby exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
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(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 6 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Initial Purchaser or any person
controlling the Initial Purchaser, the Company, its directors or officers or any
person controlling the Company, (ii) acceptance of any Offered Securities and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to the Initial Purchaser or any person controlling the Initial
Purchaser, or to the Company, its directors or officers or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 6.
7. Conditions of the Initial Purchaser's Obligations. The obligation
of the Initial Purchaser to purchase the Offered Securities hereunder are
subject to the following conditions:
(a) At the time of execution of this Agreement and on the Closing
Date, no order or decree preventing the use of the Offering Memorandum or any
amendment or supplement thereto, or any order asserting that the transactions
contemplated by this Agreement are subject to the registration requirements of
the Act shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending or, to the knowledge of the Company, be
contemplated. No stop order suspending the sale of the Offered Securities in any
jurisdiction designated by the Initial Purchaser shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the financial condition, business, net worth, or results
of operations of the Company or the Subsidiaries not contemplated by the
Offering Memorandum, which in the opinion of the Initial Purchaser, would
materially, adversely affect the market for the Offered Securities, or (ii) any
event or development relating to or involving the Company or any of the
Subsidiaries, or any officer or director of the Company or any of the
Subsidiaries, which makes any statement made in the Offering Memorandum untrue
in any material respect or which, in the opinion of the Company and its counsel
or the Initial Purchaser and its counsel, requires the making of any addition to
or change in the Offering Memorandum in order to state a material fact required
by any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Offering Memorandum to
reflect such event or development would, in the opinion of the Initial
Purchaser, materially, adversely affect the market for the Offered Securities.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the Company, dated the
Closing Date and addressed to you, that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum (and any amendment
or supplement thereto);
(ii) Each Subsidiary is a corporation duly incorporated and
validly existing and in good standing under the laws of the jurisdiction of its
organization, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Offering
Memorandum (and any amendment or supplement thereto);
(iii) The authorized capital stock of the Company is as set
forth under the caption "Capitalization" in the Offering Memorandum;
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(iv) The Company has the corporate power and authority to
enter into this Agreement and the Registration Rights Agreement and to issue,
sell and deliver the Offered Securities to be sold by it to the Initial
Purchaser as provided herein, and this Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by the Company and
are valid, legal and binding agreements of the Company, enforceable against the
Company in accordance with their terms, except (A) as enforcement of rights to
indemnity and contribution hereunder and thereunder may be limited by Federal or
state securities laws or principles of public policy and (B) subject to the
qualification that the enforceability of the Company's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance or transfer,
insolvency, reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(v) The Guaranteeing Subsidiaries have all requisite corporate
power and authority to execute, deliver and perform their obligations under the
Registration Rights Agreement; the execution and delivery of, and the
performance by the Guaranteeing Subsidiaries of their obligations under the
Registration Rights Agreement has been duly and validly authorized by the
Guaranteeing Subsidiaries and the Registration Rights Agreement has been duly
executed and delivered by the Guaranteeing Subsidiaries and constitutes the
valid and legally binding agreement of the Guaranteeing Subsidiaries,
enforceable against the Guaranteeing Subsidiaries in accordance with its terms,
except as the enforcement hereof and thereof may be limited by bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity, and except as
rights to indemnity and contribution thereunder may be limited by Federal or
state securities laws or principles of public policy.
(vi) The Indenture has been duly and validly authorized,
executed and delivered by the Company and the Guaranteeing Subsidiaries and,
assuming due authorization, execution and delivery by the Trustee, is a valid
and binding agreement of the Company and the Guaranteeing Subsidiaries,
enforceable in accordance with its terms, subject to the qualification that the
enforceability of the obligations of the Company or Guaranteeing Subsidiaries
thereunder may be limited by bankruptcy, fraudulent conveyance or transfer,
insolvency, reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles; and no
qualification of the Indenture under the 1939 Act is required in connection with
the offer and sale of the Offered Securities contemplated hereby or in
connection with the Exempt Resales;
(vii) The Notes and the Subsidiary Guarantees have been duly
and validly authorized by the Company or the Guaranteeing Subsidiaries, as the
case may be, and when executed by the Company or the Guaranteeing Subsidiaries,
as the case may be, in accordance with the Indenture and assuming due
authentication of the Notes by the Trustee, upon delivery to the Initial
Purchaser against payment therefor in accordance with the terms hereof, will
have been validly issued and delivered, and will constitute valid and binding
obligations of the Company or the Guaranteeing subsidiaries, as the case may be,
entitled to the benefits of the Indenture and enforceable in accordance with
their terms, subject to the qualification that the enforceability of the
obligations of the Company and the Guaranteeing Subsidiaries thereunder may be
limited by bankruptcy, fraudulent conveyance or transfer, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights generally and by general equitable principles;
(viii) Neither the offer, sale or delivery of the Offered
Securities, the execution, delivery or performance by the Company of this
Agreement, the Registration Rights Agreement or the Indenture, compliance by the
Company with the provisions hereof or thereof nor consummation by the Company of
the transactions contemplated hereby or thereby constitutes or will constitute a
breach or violation of, or a default under the certificate or articles of
incorporation or bylaws or other organizational documents of the Company or any
Subsidiaries or any indenture, bond, note, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties is bound that is made an
exhibit to any Incorporated Document or is known to such counsel, or will result
in the creation or imposition of any
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lien, charge or encumbrance upon any property or assets of the Company or any of
the Subsidiaries under any such indenture bond, note, lease or other agreement
or instrument, nor will any such action result in any violation in any material
respect of any existing law, or any regulation, ruling (assuming compliance with
all applicable state securities and Blue Sky laws and, in the case of the
Registration Rights Agreement, the Act and the Exchange Act and the 1939 Act),
judgment, injunction, order or decree known to such counsel, applicable to the
Company or the Subsidiaries or any of their respective properties;
(ix) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency, or official is required on the part of the
Company or any of the Subsidiaries (except as have been obtained under the
Exchange Act, or such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Offered Securities, or such as
may be required to qualify the Indenture under the 1939 Act, and such as may be
required in connection with the performance by the Company of its obligations
under the Registration Rights Agreement, as to which such counsel need not
express an opinion) for the valid issuance and sale of the Offered Securities to
the Initial Purchaser as contemplated by this Agreement;
(x) To the knowledge of such counsel, (A) there are no legal
or governmental proceedings pending or threatened against the Company or any of
the Subsidiaries, or to which the Company or any of the Subsidiaries, or any of
their property, are subject, which are not disclosed in the Offering Memorandum
and which could reasonably be expected to have a Material Adverse Effect and (B)
there are no agreements, contracts, indentures, leases or other instruments that
are required to be filed as an exhibit to any Incorporated Document that are not
filed as required;
(xi) The statements in the Offering Memorandum, insofar as
they are descriptions of contracts, agreements or other legal documents, or
refer to statements of law or legal conclusions, are accurate in all material
respects and present fairly the information shown;
(xii) When the Offered Securities are issued and delivered
pursuant to this Agreement, such Offered Securities will not be of the same
class (within the meaning of Rule 144A(d)(3) under the Act) as any security of
the Company that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
interdealer quotation system;
(xiii) No registration of the Offered Securities under the Act
is required for the sale of the Offered Securities to the Initial Purchaser as
contemplated in this Agreement or for the Exempt Resales (assuming (A) that any
Eligible Purchaser who buys the Offered Securities in the Exempt Resales is a
Qualified Institutional Buyer and (B) the accuracy of the Initial Purchaser's
representations and those of the Company in this Agreement regarding the absence
of general solicitation in connection with the Exempt Resales); and
(xiv) The Company is not required to deliver the information
specified in Rule 144A(d)(4) in connection with the offering and resale of the
Offered Securities by the Initial Purchaser;
In addition, such counsel shall state that although such counsel has
not undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements in the Offering Memorandum, such
counsel has participated in the preparation of the Offering Memorandum,
including review and discussion of the contents thereof, and has reviewed the
Incorporated Documents, and, nothing has come to the attention of such counsel
that has caused them to believe that the Offering Memorandum, as of its date and
as of the Closing Date contained an untrue
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statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that any amendment
or supplement to the Offering Memorandum, as of its respective date, and as of
the Closing Date contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and the notes thereto and the
schedules and other financial, accounting and statistical data included or
incorporated by reference in the Offering Memorandum and information furnished
by or on behalf of the Initial Purchaser).
The opinion of such counsel shall be limited to the laws of the
United States, the State of New York and the General Corporation Law of the
State of Delaware.
(d) You shall have received on the Closing Date an opinion
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of the Company, dated the
Closing Date and addressed to you, that:
(i) The Company is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify would not have a Material Adverse Effect;
(ii) Each Subsidiary is duly registered and qualified to conduct its
business and is in good standing as a foreign corporation in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify or to be in good standing would not have
a Material Adverse Effect; and all the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned of record by the Company
(with the exception of Everest & ▇▇▇▇▇▇▇▇ de Mexico S.A. de C.V.)
directly, or indirectly through one of the other Subsidiaries, free and
clear of any perfected security interest or, to such counsel's knowledge,
any other lien, adverse claim, equity or other encumbrance, except as
disclosed in the Offering Memorandum (or any amendment or supplement
thereto);
(iii) To the knowledge of such counsel, neither the Company nor any
of the Subsidiaries is in violation of its certificate of incorporation or
bylaws, or other organizational documents, or in default in the
performance of any material obligation, agreement or condition contained
in any bond, debenture, note or other evidence of indebtedness, or in any
agreement, indenture, lease or other instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, in each case that is made an exhibit
to any Incorporated Document or is known to such counsel;
(iv) To the knowledge of such counsel, neither the Company nor any
of the Subsidiaries is in violation of any law, ordinance, administrative
or governmental rule or regulation applicable to the Company or any of the
Subsidiaries, the violation of which could reasonably be expected to have
a Material Adverse Effect, or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries; and to the knowledge of such counsel, each of the Company
and the Subsidiaries has all necessary Permits (except where the failure
to so have any such Permits, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect) to own its
properties and to conduct its business as now being conducted as described
in the Offering Memorandum;
The opinion of such counsel shall be limited to the laws of the United States,
the State of New York and the General Corporation Law of the State of Delaware.
(e) You shall have received on the Closing Date an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, counsel for the Initial Purchaser, dated the Closing Date, and
addressed to you, with respect to the matters referred to in clauses (iv), (vi),
(vii), (xiii) and the penultimate paragraph of the foregoing paragraph (c) and
such other related matters as the Initial Purchaser may request.
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(f) You shall have received letters addressed to the Initial
Purchaser, and dated the date hereof and the Closing Date from Ernst & Young
LLP, independent certified public accountants, substantially in the forms
heretofore approved by the Initial Purchaser.
(g)(i) There shall not have been any material change in the capital
stock of the Company nor any material increase in the short-term or long-term
debt of the Company and the Subsidiaries, taken as a whole, from that set forth
or contemplated in the Offering Memorandum (or any amendment or supplement
thereto); (ii) there shall not have been, since the respective dates as of which
information is given in the Offering Memorandum (or any amendment or supplement
thereto), except as may otherwise be stated in the Offering Memorandum (or any
amendment or supplement thereto), any material adverse change in the financial
condition, business, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole; (iii) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the Offering
Memorandum or the Incorporated Documents (or any amendment or supplement
thereto); and (iv) all the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the date hereof and on and as of the Closing Date as if made on and
as of the Closing Date, and the Initial Purchaser shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief accounting officer of the Company (or such other officers as are
reasonably acceptable to the Initial Purchaser), to the effect set forth in this
Section 7(g) and in Section 7(h) hereof.
(h) The Company shall not have failed in any material respect at or
prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(i) The Initial Purchaser shall have received certificates dated the
date hereof and the Closing Date signed by the chief financial officer of the
Company substantially in the forms heretofore approved by the Initial Purchaser,
respecting the Company's compliance with the financial covenants set forth in
the Company's Credit Agreement with IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company.
(j) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of Rule
436(g) under the Act, that (i) it is downgrading its rating assigned to any
class of securities of the Company, or (ii) it is reviewing its ratings assigned
to any class of securities of the Company with a view to possible downgrading,
or with negative implications, or direction not determined.
(k) The Offered Securities shall have been approved for trading on
PORTAL.
(l) The Company and the Guaranteeing Subsidiaries shall have
executed and delivered the Indenture and the Registration Rights Agreement.
(m) The Company shall have furnished or caused to be furnished to
the Initial Purchaser such further certificates and documents as the Initial
Purchaser shall have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchaser and counsel for the
Initial Purchaser.
Any certificate or document signed by any officer of the Company and
delivered to the Initial Purchaser, or to counsel for the Initial Purchaser,
shall be deemed a representation and warranty by the Company to the Initial
Purchaser as to the statements made therein.
8. Expenses. The Company agrees to pay the following costs and
expenses and all
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other costs and expenses incident to the performance by it of its obligations
hereunder: (i) the preparation, printing or reproduction of the Offering
Memorandum (including financial statements thereto), and each amendment or
supplement thereto; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Offering Memorandum, the Preliminary Offering Memorandum, the
Incorporated Documents, and all amendments or supplements to any of them as may
be reasonably requested for use in connection with the offering and sale of the
Offered Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Offered Securities, including any stamp
taxes in connection with the original issuance and sale of the Offered
Securities; (iv) the printing (or reproduction) and delivery of this Agreement,
the Indenture, the Registration Rights Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Offered
Securities; (v) the application for quotation of the Offered Securities on
PORTAL; (vi) the qualification of the Offered Securities for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 4(f) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Initial Purchaser relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such qualification); (vii) the performance by the Company of its
obligations under the Registration Rights Agreement; (viii) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (ix) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Offered Securities. The Company hereby agrees that it will pay in full on
the Closing Date the fees and expenses referred to in clause (vi) of this
Section 8 by delivering to counsel for the Initial Purchaser on such date a
check payable to such counsel in the requisite amount.
9. Effective Date of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
10. Termination of Agreement. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchaser, without
liability on the part of the Initial Purchaser to the Company, by notice to the
Company, if prior to the Closing Date (i) trading in securities generally on the
New York Stock Exchange, American Stock Exchange or the Nasdaq National Market
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Initial Purchaser, impracticable or inadvisable to commence or
continue the offering of the Offered Securities on the terms set forth on the
cover page of the Offering Memorandum or to enforce contracts for the resale of
the Offered Securities by the Initial Purchaser. Notice of such termination may
be given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
11. Information Furnished by the Initial Purchaser. The statements
set forth in the stabilization legend on the inside front cover, the last
paragraph on the cover page and in the second, third, sixth and seventh
paragraphs under the caption "Plan of Distribution" in the Preliminary Offering
Memorandum and Offering Memorandum, constitute the only information furnished by
or on behalf of the Initial Purchaser as such information is referred to in
Sections 5(b) and 6 hereof.
12. Miscellaneous. Except as otherwise provided in Sections 4 and 9
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel, with a copy to Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq. or (ii) if to the
Initial Purchaser, to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Manager, Investment Banking Division, with a copy to ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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This Agreement has been and is made solely for the benefit of the
Initial Purchaser, the Company, its directors, its officers and the controlling
persons referred to in Section 6 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Initial Purchaser of any of the Offered
Securities in his status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York without
giving effect to the choice of laws or conflict of laws principles thereof.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Initial Purchaser.
Very truly yours,
▇▇▇▇▇▇-FIELD HEALTH PRODUCTS, INC.
By:________________________________________
Name:
Title:
Confirmed as of the date first
above mentioned.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:______________________________
Name:
Title:
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SCHEDULE I
ACTIVE SUBSIDIARIES
NAME STATE OF INCORPORATION
---- ----------------------
Everest & ▇▇▇▇▇▇▇▇ Canadian Ltd. Canada
Everest & ▇▇▇▇▇▇▇▇ de Mexico S.A. de C.V. Mexico
Everest & ▇▇▇▇▇▇▇▇, Inc. California
▇▇▇▇▇▇-Field Bandage, Inc. Rhode Island
▇▇▇▇▇▇-Field Distribution, Inc. Missouri
▇▇▇▇▇▇-Field Express, Inc. Delaware
▇▇▇▇▇▇-Field Express (Dallas), Inc. Delaware
▇▇▇▇▇▇-Field Express (Puerto Rico), Inc. Delaware
▇▇▇▇▇▇-Field, Inc. New York
▇▇▇▇▇▇-Field Temco, Inc. New Jersey
Kuschall of America, Inc. California
LaBac Systems, Inc. Colorado
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